2000
<PRE>[DOCID: f:h3484ih.txt]






107th CONGRESS
  1st Session
                                H. R. 3484

To resolve administrative disputes regarding certain spectrum licenses; 
                        and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           December 13, 2001

    Mr. Tauzin (for himself, Mr. Sensenbrenner, Mr. Thomas, and Mr. 
   Conyers) introduced the following bill; which was referred to the 
Committee on Energy and Commerce, and in addition to the Committees on 
   the Judiciary, Ways and Means, and the Budget, for a period to be 
subsequently determined by the Speaker, in each case for consideration 
  of such provisions as fall within the jurisdiction of the committee 
                               concerned

_______________________________________________________________________

                                 A BILL


 
To resolve administrative disputes regarding certain spectrum licenses; 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Prompt Utilization of Wireless 
Spectrum Act of 2001''.

SEC. 2. SETTLEMENT OF LITIGATION AND PROMPT UTILIZATION OF WIRELESS 
              SPECTRUM.

    (a) Resolution of Litigation.--
            (1) Approval of settlement.--Congress hereby authorizes and 
        approves the decision by the Federal Communications Commission 
        and the Department of Justice to settle the case entitled 
        NextWave Personal Communications Inc. and NextWave Power 
        Partners Inc. v. Federal Communications Commission and the 
        United States of America, D.C. Cir. Nos. 00-1402 and 00-1403, 
        petitions for certiorari filed, Nos. 01-653, et al. (October 
        19, 2001), and their claims in the case entitled In re NextWave 
        Personal Communications Inc., Bankr. S.D.N.Y. No. 98 B 21529 
        (ASH), in accordance with the terms of the settlement 
        agreement.
            (2) Authorization.--There are hereby authorized to be 
        appropriated $9,550,000,000, to remain available until 
        expended, to carry out this section.
            (3) Appropriation.--There is appropriated to the 
        Commission, out of any money in the Treasury not otherwise 
        appropriated, the sum of $9,550,000,000, to remain available 
        until expended, to carry out this section.
            (4) Payment obligation.--In accordance with the terms of 
        the settlement agreement, subject to the conditions set forth 
        therein (including the condition that the final bankruptcy 
        settlement approval date shall have occurred, on or before 
        December 31, 2002), and in consideration for NextWave's 
        complete relinquishment of any and all claims related to the 
        designated licenses or the covered spectrum, the Commission 
        shall pay to or on behalf of NextWave the sum of $9,550,000,000 
        no later than December 31, 2002. The Commission will make a 
        $6,498,000,000 payment directly to NextWave and will make a 
        $3,052,000,000 nonrefundable advance tax payment on behalf of 
        and for the benefit of NextWave for the taxable period. This 
        advance payment of $3,052,000,000 can be used by NextWave only 
        toward satisfaction of its Federal income tax liability for the 
        taxable period and not on a subsequent claim for refund; and it 
        cannot be carried forward or carried back to any other tax 
        period and is not available for use or tax benefit in any year 
        other than the taxable period. Notwithstanding any other 
        provision of law, the United States is authorized and directed 
        to retain all of NextWave's advance payment, irrespective of 
        the total Federal income tax liability of NextWave.
            (5) Nextwave relinquishment of claims.--In accordance with 
        the terms of the settlement agreement, on or before the 10th 
        business day after the final bankruptcy settlement approval 
        date occurs, NextWave shall completely relinquish any and all 
        claims related to the designated licenses and the covered 
        spectrum.
            (6) Nextwave tax liability.--NextWave shall pay to the 
        Internal Revenue Service its full and complete tax liability 
        with respect to the transaction that is the subject of the 
        settlement agreement. Nothing in this section is to be 
        construed as determining NextWave's Federal tax liability for 
        the taxable period or any other tax year, and nothing in this 
        section restricts the Internal Revenue Service's rights to 
        determine NextWave's Federal income tax liability for the 
        taxable period or any other tax year. Payment of its full and 
        complete tax liability shall not permit NextWave to avoid 
        payment to the United States of any other amounts it is 
        obligated to pay the United States pursuant to the terms of the 
        settlement agreement or otherwise.
            (7) Paygo provision.--Notwithstanding Rule 3 of the Budget 
        Scorekeeping Guidelines set forth in the Joint Explanatory 
        Statement of the Committee of Conference accompanying 
        Conference Report No. 105-217, any provision of this section 
        that would have been estimated as changing direct spending or 
        receipts under section 252 of the Balanced Budget and Emergency 
        Deficit Control Act of 1985 were it included in an Act other 
        than an appropriations Act shall be treated as direct spending 
        or receipts legislation, as appropriate, under section 252 of 
        the Balanced Budget and Emergency Deficit Control Act of 1985.
    (b) Implementation of Auction 35.--
            (1) Disposition of license applications.--Notwithstanding 
        any other provision of Federal, State, or local law, the 
        Commission shall grant auction 35 licenses to each 
        participating auction 35 winning bidder that the Commission 
        determines is qualified to hold the licenses. Any such grant of 
        licenses pursuant to this subsection shall be subsequent to the 
        final bankruptcy settlement approval date, and shall be 
        governed by the terms of auction 35 and the rules of the 
        Commission, except insofar as those terms and rules of the 
        Commission are modified by this section or by the terms of the 
        settlement agreement.
            (2) Withdrawal of bids.--Any auction 35 winning bidder 
        whose total winning bids for auction 35 licenses did not exceed 
        $10,000,000 may elect to withdraw all of its bids for such 
        auction 35 licenses without penalty and shall be entitled to a 
        refund of its monies on deposit with the Commission associated 
        with such auction 35 licenses, provided that such a winning 
        bidder that elects to withdraw its bids must file with the 
        Commission no later than January 30, 2002, a notice of election 
        to withdraw accompanied by a waiver and release, acceptable to 
        the Commission, of all rights and claims relating to such 
        auction 35 licenses, auction 35, or the settlement agreement. 
        Nothing in this section shall be construed to permit any 
        auction 35 winning bidder to withdraw some, but not all, of its 
        bids for auction 35 licenses.
            (3) Letters of credit and partial return of certain amounts 
        on deposit.--A participating auction 35 winning bidder that 
        provides letters of credit to the United States in accordance 
        with the terms of the settlement agreement shall be entitled to 
        a refund totaling 50 percent of its auction 35 deposits for 
        winning bids for auction 35 licenses submitted by that auction 
        35 winning bidder. The Commission shall pay such 
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refund upon 
        instructions from the payor of record, in accordance with and 
        within the time prescribed in the settlement agreement. Nothing 
        in this paragraph shall prevent the United States from 
        recouping the value of the refunded deposits at a later time, 
        to the extent authorized by the settlement agreement.
            (4) Nonparticipating auction 35 winning bidders.--Except as 
        provided in paragraph (2), any auction 35 winning bidder that 
        is not a participating auction 35 winning bidder shall remain 
        subject to the full terms of auction 35, including but not 
        limited to all payment and default obligations.
            (5) Payment by participating auction 35 winning bidders.--
        In accordance with the terms of the settlement agreement, 
        subject to the conditions set forth therein (including the 
        condition that the final bankruptcy settlement approval date 
        shall have occurred, on or before December 31, 2002), and 
        subject to paragraph (6), any participating auction 35 winning 
        bidder that the Commission determines is qualified to hold any 
        license or licenses bid on in auction 35 shall pay the amount 
        due on receipt for each auction 35 license with respect to 
        which the Commission has made such determination, as specified 
        and by the time provided in the settlement agreement, and, in 
        exchange, shall receive all such licenses.
            (6) Early payment.--Any participating auction 35 winning 
        bidder may choose, in accordance with the terms of the 
        settlement agreement, to make earlier payment for, and in 
        exchange receive at the time of payment, all auction 35 
        licenses that the Commission is prepared to grant to it.
            (7) Qualification requirements.--In the event the 
        Commission determines that any auction 35 winning bidder is not 
        qualified, under the rules of the Commission or the 
        Communications Act of 1934, to hold an auction 35 license for 
        which it submitted the winning bid, that auction 35 winning 
        bidder remains subject--
                    (A) to the rules of the Commission that would apply 
                in the absence of the settlement agreement, including 
                without limitation any and all payment and default 
                obligations and refund rights; and
                    (B) to the settlement agreement.
            (8) Refunds for participating auction 35 winning bidders.--
        In accordance with the terms of the settlement agreement, a 
        participating auction 35 winning bidder that has previously 
        been granted auction 35 licenses shall be entitled to receive 
        from the Commission, and the Commission shall pay from the 
        budget accounts that received the payments from such bidder, a 
        refund of amounts previously paid by such bidder for such 
        auction 35 licenses as follows--
                    (A) any and all amounts due on receipt previously 
                paid by such auction 35 winning bidder, if an order is 
                entered by any court in a proceeding under subsection 
                (c) that denies or has the legal effect of denying a 
                participating auction 35 winning bidder's right to use 
                the spectrum covered by one or more auction 35 licenses 
                that were previously granted to such participating 
                auction 35 winning bidder, subject to the provisions 
                set forth in the settlement agreement with respect to 
                repayment on restoration of rights; and
                    (B) any and all amounts due on receipt and auction 
                35 deposits previously paid by, and not previously 
                refunded to, such auction 35  winning bidder for such 
licenses, under the following circumstances--
                            (i) if an order entered by any court in a 
                        proceeding under subsection (c) is in effect on 
                        or after December 31, 2002, that denies or has 
                        the legal effect of denying a participating 
                        auction 35 winning bidder's right to use the 
                        spectrum covered by one or more auction 35 
                        licenses that were previously granted to such 
                        participating auction 35 winning bidder;
                            (ii) if a final court order precludes or 
                        has the legal effect of precluding the 
                        Commission from paying all or part of the 
                        amounts set forth in subsection (a); or
                            (iii) if, on December 31, 2002, the 
                        Commission has not released an order with 
                        respect to one or more auction 35 licenses for 
                        which a participating auction 35 winning bidder 
                        submitted the winning bids determining either 
                        that the Commission is prepared to grant such 
                        auction 35 license or that such participating 
                        auction 35 winning bidder is not qualified to 
                        hold such auction 35 license.
            (9) Rule of construction.--Nothing in this section shall be 
        construed to expand or limit any right to a refund set forth in 
        the settlement agreement.
    (c) Judicial Review.--
            (1) Exclusive review.--Subject to the limitations and 
        preclusions in subsection (d), any proceeding for review within 
        the scope of this subsection may be brought only in the United 
        States Court of Appeals for the District of Columbia Circuit, 
        which shall have exclusive jurisdiction over any such 
        proceeding.
                    (A) Any--
                            (i) appeal of an order disposing of the 
                        motion filed by NextWave for approval of the 
                        settlement agreement; or
                            (ii) petition seeking judicial review of 
                        the procedures provided by this section for the 
                        resolution of issues presented by such motion;
                shall be commenced by the filing, within 10 days after 
                entry of the order disposing of such motion, of a 
                notice of expedited appeal or notice of expedited 
                petition, as appropriate, which shall include a 
                reference to the review provisions of this section. 
                Nothing in this section shall affect the standard of 
                review or substantive law applicable in any such 
                proceeding. Except in a proceeding under this 
                subparagraph, no court shall have jurisdiction to 
                consider any issue that could have been raised in a 
                proceeding filed under this subparagraph.
                    (B) Any petition seeking judicial review of an 
                order of the Commission approving the settlement 
                agreement shall be commenced by the filing, within 10 
                days after the later of--
                            (i) the date on which public notice is 
                        given of the order of the Commission; or
                            (ii) the effective date of this section;
                of a petition for expedited review, which shall include 
                a reference to the review provisions of this section.
                    (C) Any challenge to any aspect of the 
                constitutionality of this section, except for a 
                challenge that must be brought pursuant to subparagraph 
                (A), shall be commenced by the filing, within 10 days 
                after the effective date of this section, of a petition 
                for expedited review, which shall include a reference 

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                to the review provisions of this section.
            (2) Expedited treatment.--The Court of Appeals shall 
        advance on its docket any and all proceedings brought under 
        paragraph (1) and shall expedite them to the greatest extent 
        possible, with a view to deciding the cases within 55 days 
        after the filing of the last timely filed petition or notice of 
        appeal, if practicable. Such expedited procedures shall apply 
        to all such cases, including those that are before the court 
        following any remand to the Commission or to the lower court 
        with jurisdiction over further proceedings related to the 
        motion filed by NextWave for approval of the settlement 
        agreement. Any petition for rehearing or rehearing en banc of 
        an order by the Court of Appeals in a case under paragraph (1) 
        shall be filed within 10 days after the entry of judgment. The 
        Court of Appeals shall expedite its consideration of any such 
        petition to the greatest extent possible, with a view to 
        resolving the petition within 20 days after it is filed, if 
        practicable.
            (3) Certiorari.--Any petition for a writ of certiorari 
        seeking review by the Supreme Court of the United States of a 
        judgment or order by the Court of Appeals under this subsection 
        shall be filed within 10 days after the entry of the judgment 
        or order. Any opposition shall be filed within 10 days after 
        the filing of the petition. The Supreme Court shall advance any 
        such petition on its docket and expedite its consideration of 
        the petition to the greatest extent possible, with a view to 
        acting on the petition within 30 days after it is filed, if 
        practicable. In the event the petition is granted, the Supreme 
        Court shall expedite consideration to the greatest extent 
        possible, with a view to issuing an order within 70 days of the 
        grant of the writ of certiorari, if practicable.
            (4) Limits on interlocutory relief affecting licenses.--In 
        adjudicating matters arising under subparagraph (B) or (C) of 
        paragraph (1), no court shall have jurisdiction to enter an 
        order that would require an auction 35 winning bidder to 
        surrender or relinquish an auction 35 license, or that would 
        deny or have the legal effect of denying a licensee's right to 
        use the spectrum covered by such a license, due to the 
        invalidity of the settlement agreement, of an order of the 
        Commission approving the settlement agreement, or of this 
        section, at any time before there is a final judgment in a 
        proceeding under such subparagraph that is no longer subject to 
        further review.
            (5) Exclusion of bidder-specific litigation and enforcement 
        proceedings.--The following proceedings shall be excluded from 
        the scope of this subsection:
                    (A) Any proceeding seeking judicial review of any 
                decision or order of the Commission specific to an 
                auction 35 winning bidder's license application, 
                including, but not limited to, a proceeding pursuant to 
                subparagraph (A) or (B) of subsection (d)(1) concerning 
                the bidder's qualifications to hold a license.
                    (B) Any proceeding to enforce the terms of the 
                settlement agreement, including, but not limited to, a 
                proceeding pursuant to subparagraph (C) of subsection 
                (d)(1).
            (6) Limitation on jurisdiction.--Except in a proceeding 
        filed under paragraph (1), no court shall have jurisdiction to 
        consider any issue that could have been raised in an action 
        filed under such paragraph.
    (d) Limitation and Preclusion of Actions.--
            (1) Limitation on administrative or judicial review.--
        Neither the settlement agreement nor an order of the Commission 
        approving the settlement agreement, granting a license, or 
        taking any other action pursuant to this section or to the 
        settlement agreement, shall be subject to administrative or 
        judicial review, except that--
                    (A) administrative and judicial review of a 
                decision of the Commission disposing of any petition to 
                deny applications of an auction 35 winning bidder, 
                which petition was timely filed on or before March 9, 
                2001, in accordance with the requirements of section 
                1.2108(b) of title 47, Code of Federal Regulations, and 
                ``C and F Block Broadband PCS Auction: Applications 
                Accepted For Filing,'' Public Notice, DA 01-520 
                (released February 27, 2001), is not precluded;
                    (B) administrative and judicial review of a 
                decision of the Commission determining that an auction 
                35 winning bidder is not qualified to hold a license, 
                initiated by that auction 35 winning bidder, is not 
                precluded;
                    (C) any party to the settlement agreement may 
                initiate a proceeding to enforce the terms of the 
                settlement agreement;
                    (D) subject to subsection (c)(1)(A), this section 
                does not affect jurisdiction to rule on the motion 
                filed by NextWave for approval of the settlement 
                agreement; and
                    (E) this section, the settlement agreement, and any 
                Commission order approving the settlement agreement, 
                shall be subject to review solely for constitutionality 
                and solely as provided in subparagraphs (A), (B), and 
                (C) of subsection (c)(1).
            (2) Limitation on injunctions regarding letters of 
        credit.--No court shall have jurisdiction to enjoin the United 
        States or the Commission from exercising its rights to draw on 
        the letters of credit that have been provided by a 
        participating auction 35 winning bidder in accordance with the 
        terms of the settlement agreement.
            (3) Preservation of commission authority.--Nothing in this 
        subsection affects the jurisdiction or authority of the 
        Commission, consistent with the Communications Act of 1934, the 
        rules of the Commission, and the settlement agreement, to 
        withdraw authorization to use spectrum or enforce license 
        conditions applicable to the affected spectrum. Except as 
        otherwise provided in this section or the settlement agreement, 
        auction 35 winning bidders remain subject to the rules of the 
        Commission and the Communications Act of 1934.
    (e) Frivolous Actions.--Any person who files an action in 
derogation of limitations or deadlines set forth in subsections (c) and 
(d), or who is found to have acted without substantial justification in 
filing such action, shall be subject to sanctions under section 1927 of 
title 28, United States Code, and Rule 11 of the Federal Rules of Civil 
Procedure.
    (f) Definitions.--As used in this section:
            (1) Amount due on receipt.--The term ``amount due on 
        receipt'' means the amount equal to the balance due to the 
        Commission, under the rules of the Commission, as of the 
        applicable payment date under the settlement agreement for an 
        auction 35 license. The amount due on receipt for an auction 35 
        license does not include the auction 35 deposit for such 
        license.
            (2) Auction 35.--The term ``auction 35'' means the 
        Commission-conducted spectrum auction number 35 that commenced 
        on December 12, 2000, for Personal Communications Services 
        licenses to operate covered spectrum and other spectrum.
            (3) Auction 35 deposit.--The te
17f2
rm ``auction 35 deposit'' 
        means any monies on deposit with the Commission paid by a 
        participating auction 35 winning bidder for an auction 35 
        license. The auction 35 deposit for an auction 35 license does 
        not include the amount due on receipt for such license.
            (4) Auction 35 licenses.--The term ``auction 35 licenses'' 
        means those licenses to use covered spectrum for which auction 
        35 winning bidders submitted winning bids in auction 35.
            (5) Auction 35 winning bidder.--The term ``auction 35 
        winning bidder'' means those entities that submitted winning 
        bids in auction 35 for covered spectrum.-
            (6) Bankruptcy settlement approval order.--The term 
        ``bankruptcy settlement approval order'' means an order 
        authorizing and directing NextWave to enter into the 
        transactions contemplated in the settlement agreement on the 
        terms specified therein, to relinquish any and all claims to 
        the covered spectrum and the designated licenses, and to return 
        the designated licenses to the Commission in exchange for the 
        payments provided in the settlement agreement.
            (7) Business day.--The term ``business day'' means any day, 
        other than Saturday or Sunday, on which commercial banks in New 
        York City and the Commission's offices are open for the general 
transaction of business.
            (8) Commission.--The term ``Commission'' means the Federal 
        Communications Commission.
            (9) Covered spectrum.--The term ``covered spectrum'' means 
        spectrum that NextWave had been authorized to use under the 
        designated licenses.
            (10) Days.--The term ``days'' means calendar days, 
        including weekends and holidays.
            (11) Designated licenses.--The term ``designated licenses'' 
        means the C Block and F Block licenses for which NextWave was 
        the winning bidder at auctions concluded in 1996 and 1997 by 
        the Commission under section 309(j) of the Communications Act 
        of 1934.
            (12) Final.--The term ``final'' means with respect to any 
        order that such an order has not been reversed, modified or 
        stayed and--
                    (A) the time to appeal such order has expired and 
                no appeal or petition for review, rehearing or 
                certiorari is pending; or
                    (B) any appeal has been fully decided and no 
                further appeal or petition for review, rehearing, or 
                certiorari can be timely taken or granted.
            (13) Final bankruptcy settlement approval date.--The term 
        ``final bankruptcy settlement approval date'' means the date on 
        which all of the following conditions have been satisfied:
                    (A) The bankruptcy settlement approval order has 
                become final.
                    (B) Any proceeding pursuant to paragraph (1)(A) of 
                subsection (c) has been resolved by an order that has 
                become final.
                    (C) Either Verizon Wireless has caused letters of 
                credit to be issued in accordance with the terms of the 
                settlement agreement, or, in the absence of the 
                required letters of credit, the United States has not, 
                within the time provided by the settlement agreement, 
                exercised its right to terminate the settlement 
                agreement.
            (14) Motion filed by nextwave for approval of the 
        settlement agreement.--The term ``motion filed by NextWave for 
        approval of the settlement agreement'' means the motion filed 
        by NextWave on November 30, 2001, including any supplements, 
        amendments, or modifications thereto, in the case entitled In 
        re NextWave Personal Communications Inc., Bankr. S.D.N.Y. No. 
        98 B 21529 (ASH), for approval of the settlement agreement, or 
        any subsequent motion filed by NextWave for approval of the 
        settlement agreement.
            (15) Nextwave.--The term ``NextWave'' means NextWave 
        Personal Communications Inc. and its affiliates, NextWave 
        Telecom Inc., NextWave Partners Inc., NextWave Power Partners 
        Inc., and NextWave Wireless Inc.
            (16) Participating auction 35 winning bidder.--The term 
        ``participating auction 35 winning bidder'' means an auction 35 
        winning bidder that is a party to the settlement agreement on 
        January 10, 2002, provided that any auction 35 winning bidder 
        whose total winning bids for auction 35 licenses did not exceed 
        $10,000,000 may become a party by executing the settlement 
        agreement no later than January 30, 2002.
            (17) Rules of the commission.--The term ``rules of the 
        Commission'' means any and all rules, regulations, policies, 
        procedures, public notices, and orders of the Commission that 
        are in effect at the time an action, event or matter in 
        question occurs.
            (18) Settlement agreement.--The term ``settlement 
        agreement'' means the settlement agreement dated November 15, 
        2001, entered into by NextWave, the Commission, the United 
        States, and participating auction 35 winning bidders.
            (19) Taxable period.--The term ``taxable period'' means the 
        tax period in which NextWave relinquishes any and all claims 
        related to the designated licenses and the covered spectrum, as 
        provided in paragraph (5) of subsection (a).
    (g) Effective Date.--This Act shall take effect on the date of the 
enactment of this Act and shall supersede any other Federal, State, or 
local law to the contrary.
    (h) Severability.--If a provision of this Act is held invalid, all 
valid provisions that are severable from the invalid provision shall 
remain in effect.
                                 &lt;all&gt;

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